Memorial Day 2014 and the saving grace of Zeus

It must be Memorial Day in Joan's garden, the peonies have exploded. According to Greek mythology, the peony is named after Paeon (also spelled Paean), a student of Asclepius, the Greek god of medicine and healing. Asclepius became jealous of his pupil; Zeus saved Paeon from the wrath of Asclepius by turning him into the peony flower

It must be Memorial Day. In Joan’s garden, the peonies have exploded. According to Greek mythology (and Wikipedia), the peony is named after Paeon (also spelled Paean), a student of Asclepius, the Greek god of medicine and healing. Asclepius became jealous of his pupil; Zeus saved Paeon from the wrath of Asclepius by turning him into the peony flower.



Are “paralegals” feeding on federal prisoners?

We live in a time of unprecedented changes for American lawyers,
probably the greatest changes since the Great Depression. That period saw
the creation of the lawyer’s monopoly through a series of regulatory
modifications. Will we see the same following the Great Recession?
Formally, no. This Article predicts that formal lawyer regulation in 2023
will look remarkably similar to lawyer regulation in 2013. This is because
lawyer regulators will not want to rock the boat in the profession or in law
schools during a time of roil.
Informally, yes! We are already seeing a combination of
computerization, outsourcing, and nonlawyer practice radically reshape the
market for law from one that centers on individualized, hourly work done
for clients to a market of much cheaper, commoditized legal products. This
trend will accelerate over time. The upshot? Formal lawyer regulation
will continue on with little change, but will cover an ever-shrinking
proportion of the market for legal services.

Benjamin H. Barton, The Lawyer’s Monopoly—What Goes and What Stays, 82 Fordham L. Rev. 3067 (May 2014).

Professor Barton might be correct, but this post is not intended to spark a discussion about the shrinking legal market for lawyers–at least not directly. Rather, I want to talk about one of the consequences of that shrinkage. That is, an essentially unregulated market of “paralegals” who may be offering legal services to federal prisoners and harming those prisoners in the process.

28 U.S. Code § 2255 provides a method for a prisoner in federal custody to attack his or her criminal conviction or sentence in federal court.  It is the federal equivalent of the Great Writ. While seldom successful, a section 2255 action stands as the last chance for a federal prisoner to upend a wrongful conviction or sentence. I attach such significance to those motions (they are called “motions” rather than petitions for habeas corpus) that I do them myself and without hardly any assistance from a law clerk. I do this because I was the one who presided over the case, and imposed the sentence, because it is efficient for me to do the original research and writing because I have intimate knowledge of the matter, and because I truly see these motions as very important, even though, as I have said, they are seldom successful. Note that unless the federal prisoner is entitled to an evidentiary hearing, or other special circumstances exist, he or she not entitled to the appointment of counsel. However, there is a form that is available from the Administrative Office of the United States Courts, and the various clerks of court, that serves as clear and concise guide to the prisoner.

This week, I received information from a good friend of this blog, Elaine Mittleman. She also knows a thing or two about section 2255. See, for example, Elaine Mittleman, Making a record of plea offers as a response to Frye and Lafler, a thoughtful guest post, Hercules and the umpire (June 1, 2013). See my response entitled: An order of Frye. In any event, last week, Elaine sent me a copy of a document that she received. It is that document that concerns me and it is that document that prompted this post.

The document represents that the author is a “paralegal.” It pertains to a Supreme Court case and § 2255 motions.* Quoting another source (a “law clerk” at a Federal Correctional Institution no less), the document discusses the time for filing a section 2255 motion under the Supreme Court case and whether the decision is “retroactive.” Quoting the law clerk, the document ends with this advice: “The courts are crafty and find all sort of ways to deny proper claims. [F]or this reason, please get yourself experienced help to file your [case name] argument.” (Emphasis added by Kopf.) The document footer then adds the “paralegal’s” name, address, telephone number, fax number, e-mail address and web site. Additionally, it lists the hours when “inmate calls [are] accepted” and when “Spanish speaking calls” will be accepted.

As to the substance of the advice contained in this apparent solicitation, I am dubious. It suggests a deadline for filing, and that deadline may be just flat wrong. It also goes into a discussion of “retroactivity” and that discussion seems to me to miss a very important point.

If, as I suspect, that communications like this one are intended to induce inmates to hire “paralegals” to prosecute section 2255 motions, I am concerned that federal prisoners are being fleeced. For those lawyers who have a federal criminal practice or who do federal post-conviction work I pass along this information for whatever value you care to give to it. Whether you believe legal services should be expanded or not through deregulation, surely we can all agree that federal prisoners deserve protection from incompetents who seek to profit from their misfortune.**


*I have the communication but I will not reproduce it, describe the Supreme Court case which apparently prompted the communication, or elaborate upon the specific legal issues involved. I don’t want to assist the “paralegal” in ginning up work, particularly when the document is based upon advice that may be inaccurate or misleading or incomplete.

**To be specific, Federal Public Defenders, CJA counsel, retained counsel, and post-conviction practitioners would do well to warn prisoners about paying money to “paralegals” regarding the preparation of a section 2255 motions.

All the strange connections and the classics

I admit it. I frequently see strange connections in things that most people would find not connected or only vaguely connected. But there you are. At this blog, you get what you pay for.

Michael K. Ausbrook practices law in Bloomington, Indiana. He does a lot of state and federal post-conviction litigation (federal habeas cases attacking state convictions). He and I share a connection in that I handle a lot of those cases as a judge. Additionally, we are both enamored with the late Loren Eiseley.

Born in Lincoln, Nebraska, and first educated at the University of Nebraska where he received degrees in both English and Anthropology, Loren Eiseley (September 3, 1907 – July 9, 1977) was a world-renowned anthropologist and a writer of unsurpassed talent. He taught and published essays, poetry and books from the 1940s through the 1970s.

During this period he received more than 36 honorary degrees and was a fellow of many distinguished professional societies including the Association for the Advancement of Science, the National Academy of Sciences, the National Institute of Arts and Letters and the American Philosophical Society. At his death, he was the Benjamin Franklin Professor of Anthropology and History of Science at the University of Pennsylvania.

Publishers Weekly referred to him as “the modern Thoreau.” In the broad scope of his many writings he reflected upon such diverse topics as the mind of Sir Francis Bacon, the prehistoric origins of man, and the contributions of Charles Darwin. For more, visit the Loren Eiseley Society here.*

After the post on Richard Arnold recently, Michael wrote me an e-mail. He has allowed me to reprint a portion of it. That portion reads as follows:

As I mentioned in an earlier email, my father, also an Arkansan, was in the same Harvard law school class.*

Your post caused me to go look up Judge Arnold on the web again; It was interesting to see that he went to Exeter, taking Classics, and then majored in Latin and Greek at Yale. I went to Exeter, took Latin and Greek, and then majored in Classics at the University of Pennsylvania. (Georg Knauer, one of the great Vergil and Homer scholars of the 20th century, had just arrived there from Berlin, which was some consolation for Loren Eiseley’s withdrawal from the field because of illness just as I got to the U. of P.) It occurs to me that I might be part of the last generation for which a so-called classical education was not just plain strange.

Apropos of nothing, except maybe Exeter, I’ll share with you the fun fact about the one person, were you to have been a President of the United States, you would not have wanted to be associated with in any way: Robert Lincoln, who was sent off to Exeter when he wasn’t quite ready for Harvard. He was, obviously, Abraham Lincoln’s son; he was Garfield’s Secretary of War; and he was standing feet from McKinley when McKinley was shot.

(Italics supplied by Kopf.)

Don’t you see? In some strange way, and if only for a moment, the love of the classics brought Richard Arnold, Michael’s father, Michael and me (and perhaps even Robert Lincoln) together. Eiseley would not have been surprised.


*Michael didn’t tell me, but his Dad was a very distinguished lawyer.

**Read “The Slit” from his collection of essays entitled the The Immense Journey. That chapter is the introduction to the book, and is prompted by Eiseley peering into the skull of a long-lost rodent in an exposed crevice in the High Plains. You can read “The Slit” for free here (click “look inside” on the upper left and then scroll down). You will be hooked. You can buy the little book for $10.00. It will be the best investment of your life.

Update, 11:00 am Saturday, May 24, 2014:  I forgot another connection. Michael is a 1993 Magna Cum Laude graduate of the Indiana Law school and was elected to Order of the Coif. Richard Arnold’s brother, Morris (Buzz), who served with Richard on the Court of Appeals, was Dean of the Indiana law school when he was appointed a federal district judge.

Roscoe and Richard and Circles and Ovals

“Some shapes have no corners and therefore no distinguishable sides. Circles and ovals are examples of geometric shapes that have no distinguishable sides.” Michael E. Carpenter, Describe the Properties of Geometric Shapes (scroll down).

Earlier, I posted a photo of Roscoe Pound’s circular desk at Harvard. Today, I post a picture of Richard Arnold’s oval desk in Little Rock. These were two supremely gifted men of the law who understood that having “no distinguishable sides” was not a bad thing, but rather a beautiful thing.

This is copy of a photo showing Judge Richard Arnold's oval desk was supplied to me by our Circuit Librarian in jpg format. From the properties menu, it appears that the photo was taken on Wednesday, September 29, 2004. The copy appears to have been made on that same date.  Judge Arnold died on September 23, 2004 as a consequence of an infection he suffered while being treated for Non-Hodgkin's Lymphoma (of the indolent variety) at the Mayo Clinic in Rochester, MN.  He had suffered from, and had been treated for, the disease since 1975.

This copy of a photo showing Judge Richard Arnold’s oval desk was kindly supplied by our Circuit Librarian, the marvelous Ann Fessenden. The original photo was taken on Wednesday, September 29, 2004. Judge Richard Arnold died on September 23, 2004 as a consequence of an infection he suffered while being treated for Non-Hodgkin’s Lymphoma (of the indolent type) at the Mayo Clinic in Rochester, MN. He had suffered from, and had been treated for, the disease since 1975. Upon Richard’s death, his brilliant brother (Morris (Buzz) Arnold), a Republican at the time of his appointment as an Eighth Circuit Judge, said of Richard, a Democrat at the time of his appointment as an Eighth Circuit Judge,*He was second to none in the country. I mean that literally.” According to Tony Mauro, who has covered the Supreme Court for over 30 years: At the time of Richard’s death, eight Supreme Court Justices published tributes to his fairness, judicial restraint, and eloquent and influential judicial opinions.  It is hard to imagine, these days, eight Supreme Court Justices agreeing on the time of day. But, Richard’s unique spirit and remarkable gifts brought people together. He was, as Professor Polly Price of Emory said, like Learned Hand, “perhaps the best judge never to serve on the Supreme Court.”


*Clarification, Friday, May 23, 2014 at 9:53 PM: Richard made it clear when he was first appointed as a federal district judge (barely a year later he would become a Circuit judge) that once appointed to the bench he was a judge and not a Democrat who was a judge. Before he too became a Circuit judge, the same sentiment was true for Buzz once becoming a district judge. He was a judge and not a Republican judge.

Bad news for the Justices (and the rest of us)

As I have written before, I don’t like the idea of “term limiting” the Justices. I have even provided a “top ten” list of the ways to address the polarization problem without term limits. Now, with a tip of the hat to Howard Bashman, I see that Norm Ornstein, writing in the Atlantic, has concluded that: “The best solution to the increasingly politicized and unseasoned Court is to limit justices to 18-year terms.” Mr. Ornstein’s opinions matter in Washington.

While it is cheeky almost beyond imagining, I remind the Chief Justice that he once told Jeffrey Rosen, writing in the Atlantic, about the importance of the Court speaking with one voice. Rosen provided this cutline in January of 2007: “In an exclusive interview, Chief Justice John Roberts says that if the Supreme Court is to maintain legitimacy, its justices must start acting more like colleagues and less like prima donnas.

He added that:

In Roberts’s view, the most successful chief justices help their colleagues speak with one voice. Unanimous, or nearly unanimous, decisions are hard to overturn and contribute to the stability of the law and the continuity of the Court; by contrast, closely divided, 5–4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics.

Roberts suggested that the temperament of a chief justice can be as important as judicial philosophy in determining his success or failure.  . . . .

I will be dead and buried before term limits, once imposed upon the Justices, “trickle down” to lowly Article III district judges, but it becomes inevitable once imposed at the top. Kopf’s cry to the Gods (and the Chief): Don’t make me roll over in my grave.


Raining in Lincoln and Hong Kong too!

It rained hard last night in our little corner of the world. The rain continues. It is dark and cloudy and stormy. We see Joan’s oncologist today.  He works in the same clinic as my oncologist. Old home week. Since the sigmodie-thingie-scope for Joan was good last week, we don’t anticipate problems. It was raining in Hong Kong too where Lisa’s Ob/Gyn hangs out. The family went to find out what kind of baby was coming to China. Petra knows but is not telling. Daddy doesn’t want to know what kind just yet. Quiet. It’s a secret.


Without rain, what would happen to the river of life? Well, probably, I wouldn’t think to write trash like this. Oh, well.





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